Lindner v. Frisina
| Decision Date | 17 November 1959 |
| Citation | 194 N.Y.S.2d 843 |
| Parties | Application of Marvin L. LINDNER, Petitioner, v. Warren FRISINA, as Superintendent of Buildings of the Incorporated Village of Lynbrook, George H. Mangravite, Mayor of the Incorporated Village of Lynbrook, William E. Mitchell, William A. Colton, James J . Gambee and Jay F. Korth, comprising the Board of Trustees of the Incorporated Village of Lynbrook, Respondents. |
| Court | New York Supreme Court |
W. Wesley Hill, Lynbrook, for petitioner.
Nathanial S. Rudes, Lynbrook, for respondents.
This Article 78 proceeding seeks the issuance of a building permit for a motel. The petition is dismissed without prejudice to the institution of a further proceeding after the matter has been reviewed by the Village Board of Zoning Appeals.
Respondent filed no formal answer but submitted an affidavit of the Superintendent of Buildings which raises the objection in point of law that petitioner has failed to exhaust the remedy provided by Village Law, § 179-b.
Petitioner applied for a permit to erect a 'hotel'. The word 'hotel' is defined in the Village Ordinance as follows:
'35.
The Superintendent, after first issuing a sign for erection on the premises stating that building permit No. 6927 had been granted, has refused, under instructions from the Village Board of Trustees, to issue the formal building permit. This action was taken notwithstanding the fact that petitioner has, in reliance on the issuance of the card above referred to, and on advice of village officials that the ordinance had been complied with in all respects, expended large sums of money. The basis for the sudden about face was not any change in plans, but the contention that petitioner's building is a 'motel' for which there is no definition in the ordinance, rather than a 'hotel'. Clearly, the building which petitioner seeks to erect is a hotel as that word is defined in this ordinance. Maturi v. Balint, 204 Misc. 1011, 130 N.Y.S.2d 122; Werner v. Kasotsky, Sup., 158 N.Y.S.2d 106, n. o. r.; See also Webster's New International Dictionary (2d ed. 1957) p. cxix, which defines a 'motel' as 'a hotel for automobile tourists.' This is so notwithstanding the fact that a motel has been held not an 'inn' as defined in a zoning ordinance, Von der Heide v. Zoning Board of Appeals, 204 Misc. 746, 123 N.Y.S.2d 726, affirmed 282 App.Div. 1076, 126 N.Y.S.2d 852, leave to appeal denied 283 App.Div....
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